LEE (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister to cancel the applicant's Subclass 601 (Electronic Travel Authority) visa. The applicant, Mr. Lee, was observed by Australian Border Force officers working in his aunt's coffee shop, performing duties such as cooking, running the counter, and serving customers. Although he was not remunerated for these activities, the delegate was satisfied that this conduct constituted a breach of condition 8115 of his visa, which prohibits engaging in work in Australia other than business visitor activities.

The Tribunal was required to determine whether the ground for cancellation, namely non-compliance with visa condition 8115, was established. If so, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account relevant circumstances and policy guidelines. The applicant contended that his actions were motivated by compassionate reasons, specifically to assist his aunt who suffered from chronic medical conditions affecting her ability to manage her coffee shop.

The Tribunal found that the applicant had indeed breached condition 8115 by working in his aunt's coffee shop. However, it concluded that cancellation of the visa was not mandatory. In exercising its discretion, the Tribunal gave significant weight to the compassionate purpose of the applicant's visit, which included checking on his aunt's health and assisting her due to her medical conditions. The Tribunal also considered the close relationship between the applicant and his aunt, and the fact that his presence was helpful to her.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.